Closed Captioning Update: New Complaint Rules Now Effective; Contact Information Due by March 22, 2010

On Friday, Feb. 19, 2010, two important new closed captioning rules were published in the Federal Register and went into effect. The new rules require immediate attention by video programming distributors — including broadcast television stations — to ensure that they respond promptly to viewer complaints regarding closed captioning issues, and to ensure that they timely file contact information with the FCC by March 22, 2010.

As detailed in Davis Wright Tremaine’s November 2008 advisory and subsequent January 2009 advisory update, the Federal Communications Commission (FCC) adopted a Declaratory Ruling and Order in late 2008 that, among other things, imposed new requirements on video programming distributors with respect to fielding inquiries and complaints about closed captioning. While the implementation of some aspects of those rules was delayed initially, with Friday’s publication in the Federal Register, two of those are now in effect. The new rules, and the obligations they impose on video programming distributors, are discussed below.

Streamlined complaint process

First, the Commission’s earlier Order revised the complaint process for complaints involving closed captioning rules, and with the Feb. 19 publication in the Federal Register, the new complaint procedures are effective immediately. The revised complaint procedures are as follows:

Viewers who believe that a video programming distributor has failed to meet its captioning obligations may now file a complaint directly with either the FCC or with the program distributor, e.g., cable operator, television broadcaster or DBS provider. (Previously, viewers were required to first file complaints with distributors.)

If a complaint is filed with a program distributor, then the distributor must respond to the viewer complaint in writing within 30 days of receipt. If a video programming distributor fails to respond to the complainant within 30 days, or if the complainant is unsatisfied with the response, the viewer may then file a complaint with the FCC within 30 days.

If a complaint is filed directly with the FCC, the FCC will forward the complaint to the program distributor, which will be required to respond to the FCC in writing within 30 days of receipt. (Previously, distributors were required to respond to FCC complaints within 15 days.) In responding to a complaint, the video programming distributor must provide the Commission with sufficient records and documentation to demonstrate that it has complied with the Commission’s rules.

Viewer complaints must be in writing and must be filed within 60 days of the alleged violation (whereas previously complaints could be filed within the calendar quarter in which the alleged violation occurred). The complaint also must state with specificity the alleged Commission rule violated and include some evidence of the alleged rule violation.

New captioning contact requirements

Second, in order to facilitate the ability for viewers to (1) raise immediate captioning concerns (such as garbled or missing captions), and (2) file captioning complaints, video programming distributors must publicize appropriate contact information and also provide contact information to the Commission.

To assist viewers with immediate captioning concerns while they are watching a program, video programming distributors must publish a telephone number, fax number and e-mail address for purposes of receiving and responding immediately to any closed captioning concerns. The revised rules require that “customers using this dedicated contact information must be able to reach someone, either directly or indirectly, who can address the consumer’s captioning concerns.”

Under the new rule, distributors must ensure that any staff reachable through this contact information has the capability to immediately respond to and address viewers’ concerns, and in situations where the captioning problem does not reside with the distributor, the staff person receiving the inquiry should refer the matter appropriately for resolution. Distributors are not required to alter their hours when they have staff available, but if calls are placed when staff is not available, such calls and inquiries must be returned or addressed within 24 hours. The FCC also expects distributors to take measures to accommodate calls placed through a Telecommunications Relay Service operator.

In addition, distributors also must separately designate a contact person for the receipt of written (non-immediate) captioning complaints. This contact person must have primary responsibility for captioning issues and compliance with the FCC rules. The contact information must include the contact person’s name, title/office, telephone number, fax number, postal mailing address and e-mail address. A distributor’s contact information must be included on the distributor’s Web site (if it has a Web site), in billing invoices (if any) and in telephone directories (if the distributor already directly advertises or has a paid expanded listing, i.e., more than merely name, number and location in standard font, in a telephone directory).

The FCC will maintain a list of video programming distributors’ contact information for purposes of resolving closed captioning issues. Accordingly, distributors—including cable systems, broadcast television stations and satellite television providers—must file their contact information with the FCC by March 22, 2010. Distributors must provide the required contact information both for handling immediate concerns and for receiving written captioning complaints.

The best way for video programming distributors to file this information with the FCC is to visit its Web site and submit the information online. The Commission’s Web site contains a detailed form with step-by-step instructions. Alternatively, the contact information can be e-mailed directly to the FCC’s Disability Rights Office at: CLOSEDCAPTIONING_POC@fcc.gov.

Video programming distributors must keep their contact information current and update both their Web sites and the Commission’s database within 10 business days of any changes.

Finally, the Commission has stayed the effectiveness of the rule that would require video programming distributors to forward closed captioning complaints to a third party in certain circumstances. Because of the potential conflict with laws prohibiting the disclosure of personally identifiable information to third parties, the Commission has stayed the implementation of this rule until it can review the issue further and potentially issue a notice of proposed rulemaking.

David Oxenford represents broadcasting and digital media companies in connection with regulatory, transactional and intellectual property issues. He has represented broadcasters and webcasters before the…

David Oxenford represents broadcasting and digital media companies in connection with regulatory, transactional and intellectual property issues. He has represented broadcasters and webcasters before the Federal Communications Commission, the Copyright Royalty Board, courts and other government agencies for over 30 years.

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David is a partner at the law firm of Wilkinson Barker Knauer LLP, practicing out of its Washington, DC office. He has represented broadcasters for over 30 years on a wide array of matters from the negotiation and structuring of station purchase and sale agreements to regulatory matters. His regulatory expertise includes all areas of broadcast law including the FCC’s multiple ownership limitations, the political broadcasting rules, EEO policy, advertising issues, and other programming matters and FCC technical rules.